Tuesday, March 11, 2014

Adding IST Language to HR 4007

I noted in an earlier post that I did not think that HR 4007 had much of a chance of passing unless it made some attempt to address concerns of Democrats on the House Homeland Security Committee. It would, of course, still be able to pass in the House, but it would not be considered in the Senate if two specific issues were not at least partially addressed in the bill; inherently safer technology (IST) and worker participation.

In keeping with my philosophy of offering alternatives where possible in any critique I thought that it would be appropriate for me to offer a way of dealing with the IST issue that might be acceptable to both sides of the debate.


Back in 2010 I wrote language for a proposed bill that would provide for a five year authorization and expansion of the current CFATS program. That draft language is still available, and it includes a section that addresses IST issues; Sec. 2103 Methods to Reduce the Consequences of a Terrorist Attack. With one change (which I’ll describe later), I think that this language would be marginally acceptable to both sides of the IST debate and would be workable for the folks at the DHS Infrastructure Security Compliance Division (ISCD).

IST Tool
The proposed language starts off {§2103(a)}by explaining the importance of consideration of the various techniques that have the potential for reducing a facility’s potential effect on the surrounding community from releases of toxic chemicals. It also re-affirms that the decision to implement such techniques is both a technical and a business decision that is the responsibility of facility management to make {§2103(a)(3)}.

Paragraph (b) of the IST section establishes the responsibility of DHS to establish an IST identification, review and evaluation program within CFATS. ISCD would be responsible for identifying facilities with toxic release hazard chemicals of interest (TR-COI) that would pose a “significant threat to the surrounding community in the event of a catastrophic toxic release” {§2103(b)(1)} and would identify the TR-COI that pose such a risk at the facility.

Additionally, DHS would be responsible for providing publicly available information about techniques that are currently available for potentially reducing the risks from the identified TR-COI and agencies that might be able to assist the facility in conducting the reviews required under this provision.

DHS would also be required to establish in the current Chemical Security Assessment Tool (CSAT) a new tool for reporting the evaluations that a facility has done of their IST review. For each TR-COI identified by DHS the facility management would have to characterize their assessment of the technical feasibility of implementing each IST method reviewed. The characterization would require facility management to place each method in one of the following seven categories:

• Feasible without capital expenditures and only minor process adjustments,
• Feasible without capital expenditures, but requires customer quality verification,
• Feasible with capital expenditures and only minor process adjustments,
• Feasible with capital expenditures, but requires customer quality verification,
• Probably feasible without capital expenditures, but requires process development,
• Probably feasible with capital expenditures, but requires process development,
• Possibly feasible but requires a research program, or
• Not feasible; already tried but did not work.

For technically feasible approaches (this would be the first five categories, though that is not clear in the current language) the facility would be required to provide additional information about estimates of the costs associated with the implementation of the method. While not noted in the language, anyone familiar with project cost estimations should understand that these cost estimates will get more and more iffy the further down the list one goes.

Finally, the facility would be required to provide engineering cost estimates for any new security measures that are included in the facility’s site security plan.

DHS Evaluation

Under §2104(b)(4) DHS would be required to evaluate each of the IST methods reported by the facility. They would determine, based upon the information provided, if the measure was technically feasible. For all technically feasible methods, they would make a determination if the implementation of the method would be sufficient to reduce the Tier ranking of the facility or remove it from the coverage of the CFATS program.

For those methods meeting the second criteria, DHS would evaluate which proposed security measures would not be necessary if the method were put into place. It would then determine if the cost of implementing the reported method (based upon facility supplied information) would be less than 120% of the estimated costs of the security measures that could be avoided; this would be a rough measure of financial feasibility.

Finally DHS would make a determination if the implementation of the method would transfer the risk to another facility, thereby increasing the risk to that facility. DHS would then provide a report to the facility about the results of its evaluation. There is nothing in this language that provides DHS authority to mandate implementation. That is in keeping with the current §550 authorization language and the language of §2(c)(1) of HR 4007.

Congressional Reports

As with any new program the language of the IST provisions would require reports to Congress. Two different reports would be required in this proposed language. The first would be a composite report of all of the evaluations conducted to date by DHS. This would be submitted annually.

The second report would be prepared on the 1 year anniversary of the receipt of the first IST report. It would be a compilation of results of reports submitted by facilities. It would include the DHS evaluation of the number of people potentially removed from risk by the reported methods. DHS would use that data to suggest to Congress ten of the methods identified for potential research grant funding to provide detailed information that facilities could use to better evaluate and implement the potential risk reduction methods.

Improvements to the Language

I wrote the draft bill better than three years ago now and there are some things that I would do a bit differently. First off, I would extend the definition of ‘feasibility’ to include both technical and business feasibility. If a method would conflict with customer requirements or legal requirements of other government regulations it would not be feasible.

Next I would make it clearer that the DHS evaluation is not on the merits of the facility evaluation, but rather an extension of that evaluation to include information not available to the facility. The facility, for instance, is not in a good position to determine how many people would no longer be at risk of a release.


If industry is right, and I think that generally it is, if there is an economical way to do something safer, and someone makes facilities really look at it, then I think that most facility managers will take the safe option. Most people do see the benefit of doing things safely when it is pointed out to them. Without that required look though, too  many people get trapped by the ‘this is the way we have always done this and it has worked so far’ approach to these types of things.

The detailed report to Congress is the key to getting buy in by the activists who want to see government mandates of IST methods. If they can see that there are genuine movements by industry, it may overcome some of their general (and long, and legitimately held) mistrust of the chemical industry. If there is not sufficient movement (and that is a political measure) then the reports should give Congress the ammunition to ignore the pleas of let us police our own house from industry.

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